Supreme Court Chief Hudson asks if court should disqualify Trump — even if it can

Minnesota Supreme Court Chief Justice Natalie Hudson posed a basic question Thursday at the outset of oral arguments on a petition seeking to use the U.S. Constitution's insurrection clause to disqualify former President Donald Trump from the 2024 ballot.

If the court's justices agree that they have the ability to bar Trump, " 'Should we' is the question that concerns me most," the chief said. She raised the prospect of chaos if 50 state courts decide differently on Trump's eligibility. "So, should we do it?" she asked.

The question went to Ronald Fein, lawyer for a bipartisan coalition including the national nonprofit Free Speech for People, former Secretary of State Joan Growe and former Supreme Court Justice Paul H. Anderson.

Hudson noted that prior cases on ballot disqualification gave mixed guidance on the issue. "Doesn't that suggest we use caution and some judicial restraint and maintain the status quo?" she asked.

Fein countered that there is "ample authority" to disqualify Trump and that the constitutional directive to the court is that it shall disqualify Trump.

The questioning from the bench was the first peek at what the justices might be thinking on the petition seeking to bar Trump from the Minnesota ballot based on Section 3 of the 14th Amendment. The insurrection clause prohibits former officers from holding office again if they've "engaged in insurrection or rebellion" or "given aid or comfort" to those who did.

In a 70-minute session, the court heard from four attorneys representing the coalition, Secretary of State Steve Simon, Trump, his campaign and the state GOP. When the session wrapped, Hudson commended the lawyers for their arguments and said the court would decide in "due course."

The court knows that time is critical. Arguing briefly for Simon, Assistant Attorney General Nathan Hartshorn took no position on Trump's eligibility, but asked the court to rule no later than Jan. 5 so county election officials have time to prepare for the presidential primary before absentee voting begins Jan. 19.

Hudson noted to Hartshorn that friend-of-the-court briefs filed in the case suggest that Minnesota law gives Simon's office "an awful lot of power to determine who is qualified or not qualified" to be on the ballot. "Should we be concerned about that?"

Hartshorn countered that Simon's position is he doesn't have the authority to make the decision. Hudson asked, "You're saying if you get an order from us, you're going to comply with that?"

"Absolutely," Hartshorn responded.

At the beginning of their remarks, each lawyer spoke for three uninterrupted minutes before questions began. Joining Hudson on the bench in a full courtroom were Justices G. Barry Anderson, Anne McKeig, Gordon Moore and Paul Thissen.

Justices Margaret Chutich and Karl Procaccini recused themselves for unstated reasons but presumably because Charles Nauen, a lawyer for the petitioners, is tied to the justices' election campaigns.

Hudson asked the most questions, followed by Thissen and Anderson. The subjects ranged from whether it's up to Congress to decide whether to disqualify Trump, what defines an insurrection, whether the court has the authority to ban Trump and if the ruling would be breaking new ground.

Moore and McKeig asked fewer but more precise questions. Moore asked Nicholas Nelson, the attorney for Trump and his campaign, what the petitioners would have to prove to show that Trump had engaged in an insurrection or rebellion.

Nelson said the events of Jan. 6, 2021, didn't qualify. He argued that some serious crime and violence took place but nothing on the scale or scope of an insurrection.

Moore asked whether the bipartisan House impeachment of Trump should bear on the court's ruling. Nelson said if it does, then the Senate's acquittal should also be factored.

McKeig asked whether the questions of definition and Trump's participation weighed in favor of the petitioners' request for an evidentiary hearing to determine the answers. Nelson didn't answer directly.

To Fein, the petitioners' lawyer, McKeig asked whether there was a difference between someone holding office and putting his name on the ballot. Thissen said he, too, was troubled by the timing: Is Trump ineligible to be on the ballot or ineligible to hold office?

Fein said Trump is disqualified from being on the ballot unless both houses of Congress grant him amnesty by two-thirds votes. He also argued that Section 3 is a "direct prohibition on office-holding" for those who aid insurrections.

One of Nelson's main arguments was that the issue of Trump's ballot eligibility is a political, not a judicial question. "We think that's an important part of the separation of powers," he said.

"The Constitution does not say the states have a role in determining who is eligible to be president," Nelson said.

Justice Anderson asked Nelson whether he agreed the court is in uncharted territory. Nelson didn't directly answer the question, but said the courts should dismiss the case for lack of jurisdiction or determine it fails on the merits.

To Reid LeBeau, the attorney for the state GOP, Thissen asked whether his position would be different in a general election rather than a primary. The state GOP argued that blocking Trump violates its First Amendment right of association.

LeBeau said that in primaries, the parties choose who will be their standard-bearers. Multiple times the justices asked whether the GOP could put someone on the ballot who isn't a natural born U.S. citizen and is under 35 — both presidential qualifications in the U.S. Constitution.

LeBeau said those facts aren't in dispute here and are easier to discern.

Hudson persisted. "I would agree it's harder to determine if someone engaged in an insurrection than whether someone is 35. That goes to petitioners' suggestion we should have an evidentiary hearing," the chief said.

LeBeau also raised the prospect of 50 states deciding the Trump ballot issue differently. Hudson responded, "That's why we have a U.S. Supreme Court, which is where this probably should be decided."

Thissen asked LeBeau if it's correct that there is no controlling legal authority defining insurrection or rebellion. LeBeau said that is correct, and why Congress would need to act to exclude someone from the ballot.

Hudson said, "Insurrection kind of might be in the eye of the beholder and it depends who's doing the beholding."

But Fein, for the petitioners, said insurrection is as "open to judicial enforcement as any other terms in the Constitution."

In an email before the hearing, retired Justice Paul Anderson said he wouldn't attend. "I do not need to make my being a party that more evident by my appearance in the courtroom," he said, adding in an email that he also believes this won't be the last word.

"The issue will be appealed to and decided by the U.S. Supreme Court," he wrote.

The entire session is available free online.

A similar case is pending in Colorado and experts say more are likely to be filed elsewhere.